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November 19, 2008

Eharmony Class Certified Despite Promised Gay Site

Update:Mediation ahoy! See after the jump.

Online dating service eHarmony may have settled its discrimination spat with the New Jersey Attorney General today, but a case in California keeps rolling on.

Hours after eHarmony unveiled a new same-sex only Web site, the key condition of its New Jersey settlement, a Los Angeles County Superior Court judge certified a statewide class action against the company, which refuses to let users seek same-sex lifemates on eHarmony.com.

The separate but equal second part of this story, after the jump:

The class includes “all gay, lesbian, and bisexual individuals who have been and/or are still denied…services offered to the public by eHarmony.com based on their sexual orientation.” According Judge Victoria Chaney’s ruling, 224 emails from class members to eHarmony seeking to use the site were presented to the court as evidence, and the plaintiffs estimate there could be thousands more.

But eHarmony says the New Jersey settlement has defused the California class action.

“We believe that this case is now essentially moot, and we're confident that we will prove that in court,” said Antone Johnson, the company’s vice president of legal affairs. “Now that we're entering the same-sex-matching market, we fail to see what the [California] plaintiffs could achieve through further litigation."

Plaintiffs’ attorney Joshua Konecky takes a different view.

“There needs to be an injunction that a California court can enforce that can prevent [eHarmony] from saying, ‘Oh, I don’t want to do it anymore,’” said Konecky, of San Francisco’s Schneider Wallace Cottrell Brayton Konecky.

According to the terms of the New Jersey settlement, eHarmony will implement the site — still not live yet — by March 31 and will keep it up for at least two years.

Konecky said he’s hopeful that, with Chaney’s class certification ruling, eHarmony will agree to an injunction in California.

Robert Freitas, a partner at Orrick, Herrington & Sutcliffe who represents eHarmony in California, was unavailable for comment Wednesday afternoon.

The issue of damages also remains, Konecky said.

Each plaintiff could potentially collect the minimum statutory amount of $4,000 under the state’s Unruh Civil Rights Act, a possibility that eHarmony emphasized to Chaney when arguing against class certification, saying that with a high-end estimate of 546,000 single gay, lesbian and bisexual people in the state, the total damage award could reach nearly $2.2 billion. Chaney said that amount was inflated, since the plaintiffs are only asking for damages for the subclass of people who actually tried to use the site.

Update:
In a hearing Thursday before Chaney, both sides agreed to enter mediation with a yet-to-be-determined private judge.

“If we make a deal, we make a deal,” Freitas said. “They’re not entitled to any money unless there’s been a violation of the law, and we don’t believe there’s been a violation of the law.”

Konecky said that Chaney’s ruling on class certification created a good opportunity for the parties to “get together.” Asked whether he thought a settlement would include some kind of payout from eHarmony, he said that “there is a monetary element to the case, so yes, but the first thing that needs to be addressed before anything else is to make sure there’s a lasting commitment by eHarmony [to keep the new Web site].”

Freitas pointed out that eHarmony’s new site will be available globally, so a California injunction is unnecessary.